EXHIBIT 10.22
THIS GUARANTY AGREEMENT, dated as of December 18, 1997 (this "AGREEMENT")
BETWEEN:
(1) CYPRUS AMAX MINERALS COMPANY, a Delaware corporation (the "GUARANTOR"),
and
(2) STANDARD BANK LONDON LIMITED, a company organized and existing under the
laws of England ("STANDARD BANK"), in its capacity as the Agent for the
Lenders (in such capacity, the "AGENT").
W I T N E S S E T H:
(A) Pursuant to a Loan Agreement, dated as of December 18, 1997 (the "LOAN
AGREEMENT"), between (1) Amax Gold Inc., a Delaware corporation, as the
borrower (the "BORROWER"), (2) the banks and other financial institutions
party thereto, as the Lenders (the "LENDERS"), and (3) Standard Bank, as
the Agent for the Lenders, the Lenders have extended Commitments to make
Loans to the Borrower.
(B) The Guarantor owns 58.8% of the issued and outstanding share capital of
the Borrower.
(C) In consideration of the Lenders agreeing to extend the Commitments to make
their Loans to the Borrower under the Loan Agreement, the Guarantor has
agreed, inter alia, to guarantee the due and punctual payment of the
Borrower's obligations at all times prior to the Final Maturity Date (such
and other capitalized terms used as defined in Article 1), as more
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particularly set forth in this Agreement.
(D) This Agreement is the Guaranty Agreement referred to in the Loan Agreement,
and it is a condition precedent to the obligation of the Lenders to make
their Loans that the Guarantor execute and deliver this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged by the Guarantor, the Guarantor undertakes and
agrees, for the ratable benefit of each Lender Party, as follows:
1. DEFINITIONS; INTERPRETATION
1.1 LOAN AGREEMENT TERMS. Capitalized terms used but not defined herein
(including in the preamble and recitals) have the meanings provided in the
Loan Agreement. This Agreement is a Loan Document, and shall be
interpreted and construed in accordance with the terms and provisions of
the Loan Agreement (including Sections 1.4 and 1.6 thereof).
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1.2 DEFINED TERMS. In this Agreement (including its preamble and recitals), the
following capitalized terms shall have the following meanings:
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"AGENT" is defined in the preamble.
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"AGREEMENT" is defined in the preamble.
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"BORROWER" is defined in the first recital.
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"GUARANTEED OBLIGATIONS" is defined in Section 2.1(a).
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"GUARANTY" is defined in Section 2.1(a).
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"LENDERS" is defined in the first recital.
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"LOAN AGREEMENT" is defined in the first recital.
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"STANDARD BANK" is defined in the preamble.
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2. GUARANTY
2.1 GUARANTY OF THE BORROWER'S OBLIGATIONS
(a) The Guarantor hereby absolutely, unconditionally and irrevocably
guarantees (the "GUARANTY"), for the ratable benefit of the Lender
Parties, the full and punctual payment when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all Obligations of the Borrower to any Lender Party now
or hereafter existing under or in connection with the Loan Agreement
(other than Section 10.3 thereof) and each other Loan Document to
which the Borrower is or may become a party, whether for principal,
interest, fees, expenses or otherwise (including all such amounts
which would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code or the operation of
Sections 502(b) and 506(b) of the Bankruptcy Code or any other similar
provisions arising under Applicable Law; all such amounts referred to
as the "GUARANTEED OBLIGATIONS") and indemnifies and holds harmless
each Lender Party for any and all reasonable and documented costs and
expenses (including reasonable attorney's fees and expenses) incurred
by such Lender Party in enforcing against the Borrower any rights
under this Section.
(b) The Guaranty constitutes a guaranty of payment when due and not of
collection, and the Guarantor specifically agrees that it shall not be
necessary or required that any Lender Party exercise any right, assert
any claim or demand or enforce any remedy whatsoever against the
Borrower or any other Person before or as a condition to the
obligations of the Guarantor under the Guaranty.
(c) The Guarantor agrees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Loan Agreement and each
other Loan Document under which they arise, regardless of any
Applicable Law affecting any of such terms or the rights of any Lender
Party with respect thereto.
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2.2 REINSTATEMENT
The Guarantor agrees that the Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in
part) of any of the Guaranteed Obligations is rescinded or must otherwise
be restored by any Lender Party, upon an Insolvency Default or otherwise,
all as though such payment had not been made.
2.3 WAIVER
The Guarantor hereby waives promptness, diligence, notice of acceptance and
any other notice with respect to any of the Guaranteed Obligations and the
Guaranty, and any requirement that any Lender Party exhaust any right or
take any action against the Borrower or any other Person (including any
other guarantor) or any collateral at any time securing any Guaranteed
Obligations.
2.4 GUARANTY ABSOLUTE, ETC
This Agreement shall become effective upon the making of the Loans in
accordance with Section 2.2 of the Loan Agreement and shall remain in full
force and effect until all Guaranteed Obligations have been paid and
performed in full. The liability of the Guaranty under this Agreement shall
be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Loan Agreement
or any other Loan Document;
(b) the failure of any Lender Party to assert any claim or demand or to
enforce any right or remedy against the Borrower or any other Person
(including any other guarantor) under the provisions of the Loan
Agreement or any other Loan Document or otherwise;
(c) any change in the time, manner or place of payment or performance of,
or in any other term of, all or any of the Guaranteed Obligations or
any other extension, compromise or renewal of any Guaranteed
Obligation;
(d) any reduction, limitation, impairment or termination of any Guaranteed
Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and
the Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of or any other event or occurrence
affecting, any Obligation of the Borrower or otherwise;
(e) any amendment to, rescission, waiver or other modification of, or any
consent to departure from, any of the terms of the Loan Agreement or
any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of any
collateral, or any amendment to or waiver or release or addition to,
or consent to departure from, any other guaranty held by any Lender
Party securing any of the Guaranteed Obligations; or
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(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of the Borrower.
The Guarantor agrees that the Guaranty is intended to be an "instrument for
the payment of money only" within the meaning of Section 3213 of the New
York Civil Practice Law and Rules.
2.5 SUBROGATION, ETC.
The Guarantor will not exercise any rights which it may acquire by reason
of any payment made hereunder, whether by way of subrogation, reimbursement
or otherwise, until the prior payment in full of the Guaranteed
Obligations. Any amount paid to the Guarantor on account of any payment
made hereunder prior to the payment in full of all Guaranteed Obligations
shall be held in trust for the benefit of the Lender Parties and shall
immediately be paid to the Agent (for the ratable benefit of the Lender
Parties) and credited and applied against the Guaranteed Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Agreement; provided, however, upon the payment in full of all Guaranteed
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Obligations, the Guarantor and the Agent agree that, at the Guarantor's
request and expense, the Agent will execute and deliver to the Guarantor
appropriate documents (without recourse and without representation or
warranty except to the effect that the Agent shall not have theretofore
transferred or otherwise disposed of any such interest) necessary to
evidence the transfer by subrogation to the Guarantor of an interest in the
Guaranteed Obligations from such payment by the Guarantor. In furtherance
of the foregoing, for so long as any Guaranteed Obligations remain
outstanding, the Guarantor shall refrain from taking any action or
commencing any proceeding adverse to the interests of the Lender Parties
against the Borrower (whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this
Agreement to the Lender Parties.
2.6 INDEMNITY AND EXPENSES
In addition to similar obligations contained in this Agreement and each
other Loan Document, the Guarantor hereby indemnifies and holds harmless
each Lender Party from and against any and all claims, losses and
liabilities arising out of or resulting from this Agreement (including the
enforcement hereof), except claims, losses or liabilities resulting from
such Lender Parties' gross negligence or wilful misconduct. Upon demand,
the Guarantor will pay to the Agent the amount of any and all reasonable
expenses, including the reasonable fees and disbursements of its counsel,
on full indemnity basis, and of any experts and agents, which the Agent may
incur in connection with:
(a) the administration of this Agreement;
(b) the exercise or enforcement of any of the rights of the Agent or the
other Lender Parties hereunder; or
(c) the failure by the Guarantor to perform or observe any of the
provisions hereof.
3. REPRESENTATIONS AND WARRANTIES
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In order to induce the Lender Parties to enter into the Loan Agreement and,
in the case of the Lenders, to make and continue Loans thereunder, the
Guarantor individually for itself and with respect to matters hereinafter
relating to it represents and warrants unto each Lender Party as set forth
in this Article. The representations and warranties set forth in this
Article shall be deemed to have been made upon the delivery of the
Borrowing Request and each Interest Period Notice and on the Borrowing Date
and on the effective date of any Interest Period Notice.
3.1 ORGANIZATION, POWER, AUTHORITY, ETC
The Guarantor is a corporation validly organized and existing and in good
standing under the laws of the State of Delaware and has corporate power
and authority to own its property and assets and to carry on its business
in every jurisdiction where such qualification is necessary except where
the failure to so qualify would not result in a material adverse effect on
the business, assets, operations or condition (financial or otherwise) of
the Guarantor and its Subsidiaries on a consolidated basis. The Guarantor
has corporate power and authority to enter into and perform its obligations
under this Agreement executed or to be executed by it.
3.2 DUE AUTHORIZATION; NON-CONTRAVENTION
The execution and delivery by the Guarantor of this Agreement and the
performance by the Guarantor of its obligations hereunder (i) have been
duly authorized by all requisite corporate action, (ii) will not violate
(A) any provision of law, any order of any court, or any rule, regulation
or order of any other agency of government, (B) the Organic Documents of
the Guarantor or (C) any provision of any material indenture, agreement or
other instrument to which the Guarantor is a party, or by which the
Guarantor or any of its properties or assets are or may be bound; and (iii)
will not be in conflict with, result in a breach of or constitute (alone,
with notice, with lapse of time, or with any combination of these factors)
a default under any indenture, agreement or other instrument referred to in
Clause (ii)(C).
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3.3 VALIDITY, ETC.
This Agreement constitutes the legal, valid, and binding obligation of the
Guarantor enforceable in accordance with its terms subject, as to
enforcement and remedies only, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws of general applicability relating to
or affecting creditors' rights from time to time in effect and to general
principles of equity (regardless of whether such enforcement is considered
in a proceeding at law or in equity).
3.4 PARI PASSU
The payment Obligations of the Guarantor under this Agreement rank at least
pari passu in right of payment with all of the Guarantor's other unsecured
and unsubordinated Indebtedness.
4. COVENANTS
The Guarantor agrees with each Lender Party that, until all Commitments
have terminated and all Guaranteed Obligations have been paid and performed
in full, it will perform its obligations set forth in this Article.
4.1 MAINTENANCE OF CORPORATE EXISTENCE
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The Guarantor will do and will cause to be done at all times all things
necessary to maintain and preserve its corporate existence and will do and
cause to be done at all times all things necessary to be duly qualified to
do business and be in good standing (where such concept is relevant) as a
foreign corporation in each jurisdiction where the nature of its business
makes such qualification necessary.
4.2 PARI PASSU
The Guarantor will ensure that its payment Obligations under this Agreement
rank at least pari passu in right of payment with all of the Guarantor's
unsecured and unsubordinated Indebtedness.
5. MISCELLANEOUS
5.1 WAIVERS, AMENDMENTS, ETC
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in
writing and consented to by the Guarantor and the Agent (acting with
the approval of all the Lenders).
(b) No failure or delay on the part of the Agent in exercising any power
or right under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Guarantor in any
case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Agent under this
Agreement shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
5.2 NOTICES
All notices and other communications provided to any party hereto under
this Agreement shall be in writing and shall be sent by hand delivery,
courier delivery, by telex (if the receiving party shall have telex
facilities) or by facsimile and addressed or delivered to it at its address
set forth below its signature hereto and designated as its "Address for
Notices" or at such other address as may be designated by such party in a
notice to the other party. Any notice, if sent by hand delivery or courier
delivery, shall be deemed received when delivered; and any notice, if
transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes and transmission confirmed by
the sending facsimile machine in the case of facsimiles).
5.3 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto (and in the case of the Agent, to the ratable benefit of the
Lender Parties) and their respective successors and assigns; provided,
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however, that:
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(a) the Guarantor may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Agent and all the
Lenders; and
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(b) the rights of sale, assignment and transfer of the Agent and the
Lenders are subject to Article 9 and Section 10.11 of the Loan
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Agreement.
5.4 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.
5.5 HEADINGS
The various headings of this Agreement are inserted for convenience only
and shall not affect the meaning or interpretation of this Agreement or any
provisions hereof or thereof.
5.6 GOVERNING LAW; ENTIRE AGREEMENT
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) This Agreement constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof and
supersedes any prior agreements, written or oral, or documents with
respect thereto.
5.7 FORUM SELECTION AND CONSENT TO JURISDICTION, WAIVER OF IMMUNITY.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT OR THE
GUARANTOR SHALL BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW
YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK AND IN ADDITION ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE LOCATED OR
DEEMED LOCATED. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE
OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
SERVICE OF PROCESS MAY BE MADE UPON THE GUARANTOR BY MAILING OR DELIVERING
A COPY OF SUCH PROCESS TO IT IN CARE OF THE PROCESS AGENT AT THE PROCESS
AGENT'S ADDRESS IN NEW YORK AND THE GUARANTOR HEREBY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUIT, ACTION OR
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PROCEEDING IN NEW YORK ARISING OUT OF THIS AGREEMENT BY THE MAILING OF
COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS FOR NOTICES SET FORTH BELOW ITS
SIGNATURE HERETO. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF
FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR
TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
5.8 WAIVER OF JURY TRIAL
THE AGENT AND THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT AND THE GUARANTOR. THE
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER
LOAN DOCUMENT TO WHICH IT IS A PARTY). THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT ENTERING INTO THIS AGREEMENT.
5.9 INCORPORATION BY REFERENCE
The Guarantor and the Agent agree that the provisions of Sections 4.6, 4.7,
4.8, 4.9 and 4.12 of the Loan Agreement (to the extent that such provisions
would be applicable to the Guarantor's payment provisions hereunder) are
incorporated by reference mutatis mutandis as if set forth herein, except
that each reference to the "Borrower" shall be deemed a reference to the
"Guarantor".
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
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CYPRUS AMAX MINERALS COMPANY
By: G. J. Malys
Name Printed: GERALD J. MALYS
Title: SENIOR VICE PRESIDENT
Address for notices: 9100 East Mineral Circle
Englewood
Colorado 80112
U.S.A.
Facsimile No: 1-303-643-5269
Attention: Treasurer
STANDARD BANK LONDON LIMITED, in its
capacity as the Agent
By: S. L. Sharpe
Name Printed: S. L. SHARPE
Title: ASSISTANT GENERAL MANAGER
By: K. Russell
Name Printed: KELVIN RUSSELL
Title: ASSISTANT GENERAL MANAGER
Address for notices: Cannon Bridge House
25 Dowgate Hill
London EC4R 2SB
England
Facsimile: 0171 815 3099
Attention: Steven L.C. Sharpe
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